Opinion
DOCKET NO. A-1324-11T1 DOCKET NO. A-2925-11T1
02-14-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HUGO MANJIVAR, Defendant, and AA BAIL BONDS AND ALLEGHENY CASUALTY COMPANY, Defendants-Appellants.
Richard P. Blender, attorney for appellants. James F. Ferguson, Atlantic County Counsel, attorney for respondent (Donna M. Taylor, Assistant County Counsel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti and Harris.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-05-1277.
Richard P. Blender, attorney for appellants.
James F. Ferguson, Atlantic County Counsel, attorney for respondent (Donna M. Taylor, Assistant County Counsel, on the brief). PER CURIAM
In separate appeals — now consolidated — appellants AA Bail Bonds and Allegheny Casualty Company jointly appeal from an October 4, 2011 order denying Allegheny's motion to vacate a bail forfeiture, and from a December 20, 2011 order denying Allegheny's motion to stay payment of the bail forfeiture and to vacate an arrest warrant for defendant Hugo Manjivar. We affirm the latter order, but reverse and remand for reconsideration the former order.
I.
Although there are unexplained gaps in the factual background, the salient facts are not in serious dispute. Allegheny provided a $200,000 bail bond to secure the release of Manjivar following his arrest for what the State's brief describes as "various sexual offenses, including aggravated sexual assault on a minor."
We are unable to discern the full contours of the State's charges because the parties failed to include a copy of the indictment as part of the appellate record.
According to the certification provided by Richard Sparano, "owner of AA Bail Bonds, agent for Allegheny Casualty Corp.," Manjivar came under his company's supervision following the posting of the bail bond on May 23, 2009. As reflected in an attendance sheet provided by AA Bail Bonds, Manjivar reported on a weekly basis to Sparano's office. Presumably, Manjivar also appeared in the Law Division from time to time for several court events relating to the charges against him.
Here, again, the record is silent as to when, and how many times, Manjivar attended court.
AA Bail Bonds's records show that the last time it had direct contact with Manjivar was on or about March 16, 2010. Although the record is silent as to Manjivar's last actual appearance in court, it is undisputed that he failed to attend a mandatory proceeding scheduled for April 19, 2010, after which the bail was forfeited. Notice of the forfeiture was provided to Allegheny three days later.
The State skeptically challenges the proof of Manjivar's reporting to AA Bail Bonds by pointing out that the signatures purporting to be Manjivar's that appear in AA Bonds's attendance book look suspicious and perhaps were written by different hands.
Sparano "immediately . . . commenced an extensive investigation to locate [Manjivar]," which canvassed Manjivar's friends and family members, and lasted several weeks. Eventually, it was discovered that Manjivar, a citizen of El Salvador, had voluntarily returned to his homeland. An investigator hired by Sparano was permitted to listen in on a telephone conversation between Manjivar and his ex-wife, in which Manjivar confirmed that he had returned to El Salvador.
Sparano confirmed, through his private investigators as well as from a representative of the United States Marshall's Service that, indeed, Manjivar was in El Salvador, but Sparano did not indicate an address for him in that country. Although apparently ready, willing, and capable of apprehending Manjivar in El Salvador, the United States Marshall's Service could do nothing unless the Atlantic County Prosecutor's Office initiated the proper procedures that would allow for Manjivar's extradition. There is no dispute that the Atlantic County Prosecutor's Office declined to take any action to facilitate Manjivar's capture or extradition.
"Generally, a U.S. prosecutor seeking the extradition of a person located in El Salvador submits a request for extradition, based upon the commission of a crime enumerated in the 1911 [United States—El Salvador Extradition Treaty, 37 Stat. 1516], through the U.S. Department of Justice to the U.S. Department of State." Kelly Padgett Lineberger, Note, The United States-El Salvador Extradition Treaty: A Dated Obstacle in the Transnational War Against Mara Salvatrucha (MS-13), 44 Vand. J. Transnat'l L. 187, 201-02 (2011) (footnotes omitted).
On June 24, 2010, Allegheny moved to vacate the bail forfeiture and discharge the bail bond. The motion was not heard on its merits until August 16, 2011, largely because counsel for the surety and a representative of the Atlantic County Prosecutor's Office were having discussions regarding the possible extradition of Manjivar. After those talks broke down due to the State's refusal to initiate extradition procedures, the motion was heard.
At the hearing, a representative of the Atlantic County Prosecutor's Office indicated that extradition was not undertaken because, as far as that representative's research had indicated,
it is a cumbersome process, apart from the labor-intensive aspects of it. You know, you have to file documents through the Embassy in Washington, which then lodges them in . . . El Salvador and . . . then, of course, there's the . . . element of, you know, whether . . . it's a case that's worthy of bringing the person back, because at this point he is out of the jurisdiction and out . . . of Atlantic County in any case.Distilled to its essence, the Atlantic County Prosecutor's Office's position on Manjivar's extradition was, "we don't want to do it." No specific reasons were given for that decision, and no effort was made to explain if it was based on fiscal concerns, a likelihood-of-success-on-the-merits analysis, or on another policy basis.
On September 20, 2011, the motion judge issued an oral decision on Allegheny's motion. The judge recognized Allegheny's claim of impossibility of performance but rejected it. She instead focused upon AA Bail Bonds's "no supervisor[y] contact with the defendant for more than a month and there is nothing to show what was being done during that period to locate the defendant." The judge further commented, "given that the supervision sheet shows no contact with the defendant after March 16, 2010, one reasonably wonders why the surety waited until it was notified of the bail forfeiture to begin its efforts to locate the defendant."
After distinguishing State v. Ventura, 196 N.J. 203 (2008), and taking comfort in two recently decided unpublished opinions of this court with similar facts, the judge denied Allegheny's motion. The judge noted that the Atlantic County Prosecutor's Office's decision not to extradite Manjivar was not reviewable by the judiciary, and presumably that executive decision played little or no role in her analysis. Finally, the linchpin of the judge's determination was her view that the "inability to procure the return of the foreign national from another country to which he has fled to avoid prosecution is one of the risks a bondsman assumes in a case of this nature." Consequently, the motion was denied.
We remind trial courts that, with limited exceptions, unpublished opinions shall not be cited by any court, and that they neither constitute precedent nor bind any court. R. 1:36-3.
A few weeks later, Allegheny moved to stay the payment of the bail forfeiture and asked that the bench warrant for Manjivar's arrest be temporarily suspended for ninety days. Allegheny's rationale for suspending the warrant was to employ a ruse to lure Manjivar back to New Jersey under the misplaced belief that the case was over. In support of this scheme, Sparano presented two unauthenticated, handwritten notes from the putative child victim and her mother, which indicated that they did not wish to prosecute Manjivar. Sparano also stated that he was advised that Manjivar wanted to return to Atlantic County to be with his family and obtain needed medical treatment there. Lastly, Sparano averred that "[o]ne of the indemnitors on the bond . . . is prepared to fly to El Salvador and return with defendant if the warrant is vacated."
At the December 20, 2011 hearing, the Atlantic County Prosecutor's Office opposed suspending the warrant. It argued that the charges against Manjivar were serious and it wanted the warrant in place in the event that he tried to re-enter the United States. Furthermore, its representative expressed misgivings about the surety interacting with the victim and other witnesses in an open case by obtaining the handwritten recantations. Specifically, "these letters, that are attached [to Sparano's certification] . . . do not represent the State's position or the prosecution."
The motion judge denied the motion, finding it unseemly for the judiciary to participate in the planned deception. The judge noted:
What's difficult is . . . for the Court to . . . sign onto [something that might affect] the objectivity that a judiciary is supposed to bring to any dispute that's before it. And I'm also . . . troubled a bit . . . that we be a party to the trick. We, the judiciary. I'm also . . . troubled by the reality that for us to sign up as a judiciary, for the Court to sign up with this arrangement, might be seen as, in some fashion or other, implying an endorsement of the statements, or an act of confidence in the legitimacy of the statements that the bonding company has apparently obtained from the [putative] victim and her mother, who are State's witnesses, after all whether they wish to continue to be or not, they — neither of them has had to ability to change that reality that they are State's witnesses.Accordingly, the judge signed the memorializing order at the conclusion of the hearing, which denied Allegheny relief. These appeals followed.
II.
We start with well-familiar principles that govern bail forfeitures and remittiturs. "A person admitted to bail shall, together with that person's sureties, sign and execute a recognizance," which "shall be conditioned upon the defendant's appearance at all stages of the proceedings until final determination of the matter, unless otherwise ordered by the court." R. 3:26-4(a). Rule 3:26-6(a) provides that when a bail condition is breached, the court shall, on its own motion, declare a forfeiture.
Nevertheless, a bail forfeiture may be set aside by a court where enforcement "is not required in the interest of justice[.]" R. 3:26-6(b). A court may order a remittitur, in whole or in part, subject to an array of principles found in decisional law and the judiciary's guidelines. See, e.g., Ventura, supra, 196 N.J. at 213-16; N.J. Administrative Office of the Courts, Supplement to Directive #13-04, Further Revised Remittitur Guidelines (Nov.17, 2004) (Guidelines), available at http://www.judiciary.state.nj.us/directive/2008/dir_13-04_Supplement_11_12_08.pdf. Central to the grant of a discretionary remittitur is the proper consideration of all "factors and policies that are relevant to the equitable exercise of [the court's] discretion." State v. Toscano, 389 N.J. Super. 366, 370 (App. Div. 2007).
The Guidelines list the following pertinent factors as a starting point:
1. Whether the surety has made a reasonable effort under the circumstances to effect the recapture of the fugitive defendant. . . .
2. Whether the applicant is a commercial bondsman.
3. The degree of surety's supervision of the defendant while he or she was released on bail.
4. The length of time the defendant is a fugitive.
5. The prejudice to the State, and the expense incurred by the State, as a result of the fugitive's nonappearance, recapture and enforcement of the forfeiture.
6. Whether the reimbursement of the State's expenses will adequately satisfy the interests of justice. The detriment to the State also includes the intangible element of injury to the public interest where a defendant deliberately fails to make an appearance in a criminal case.
7. The defendant's commission of another crime while a fugitive.
8. The amount of the posted bail. In determining the amount of a partial remission, the court should take into account not only an appropriate percentage of the bail but also its amount.
[Guidelines, supra, at 1-2 (citations omitted).]
The burden of proof to demonstrate the equity of granting a remittitur in whole or in part is borne by the surety. It bears the laboring oar to show that "it would be inequitable to insist upon forfeiture and that forfeiture is not required in the public interest." State v. Childs, 208 N.J. Super. 61, 64 (App. Div.), certif. denied, 104 N.J. 430 (1986). In this case, we are satisfied that the surety presented several compelling equitable arguments that did not receive proper consideration, leading to a mistaken exercise of discretion by the motion judge.
First, we note that the motion judge did not expressly address any of the Guidelines's factors, except for item three, "[t]he degree of surety's supervision of the defendant while he . . . was released on bail." The record demonstrates that from June 1, 2009, until March 16, 2010, a span of forty-one weeks, Manjivar was in close contact with Sparano's office forty times. This suggests a high level of supervision, notwithstanding that Manjivar went missing after March 16, 2010, and failed to appear in court on April 19, 2010. Although the ultimate breakdown in communication between Manjivar and the surety was certainly unfortunate and subject to condemnation, the motion court's concentrated focus on the error of the surety's ways, without consideration of the almost-perfect weekly attendance of the preceding ten months, was misplaced.
Second, although we do not question the Atlantic County Prosecutor's Office's executive decision to not pursue Manjivar, the effect of that discretionary action was not properly measured by the motion judge. Without the State's assistance, Manjivar cannot be involuntarily extracted from El Salvador. It is no answer to assert that the surety loses everything because it unwittingly facilitated that circumstance through its post-March 16, 2010, lack of oversight. Nor is it enough to disqualify the surety from a remittitur just because it should have been aware of Manjivar's alien status and was accordingly obliged to predict Manjivar's escape to El Salvador. The facts of this case do not conclusively suggest that Manjivar's ties to his native country increased the risk of flight.
Although these factors would be legitimate issues for the motion judge to weigh, the judge failed to also consider the savings in time, energy, talent, and tax dollars engendered by the Atlantic County Prosecutor's Office's decision not to initiate extradition procedures. Atlantic County's coffers cannot enjoy a windfall because extradition "is a cumbersome process." At the very least, the surety ought to receive some consideration because local prosecutors and their staffs were not enlisted in an international quest for Manjivar.
Here, because the Law Division did not fully address the applicable law and weigh all of the pertinent factors as summarized in Ventura and the Guidelines, we reverse its October 4, 2011 order denying Allegheny's motion to vacate the bail forfeiture, and remand for reconsideration. We intimate no views as to whether a remittitur must ultimately be granted or the amount of any such relief.
As for Allegheny's challenge to the December 20, 2011 order denying its request to suspend the arrest warrant, we affirm the motion judge substantially for the reasons expressed by her at that time. We fully agree that it would be unseemly and inappropriate for the judiciary to engage in the suggested machinations. Actually, it is more than that. Our participation in such a scheme would be an abuse of lawful power, perverts the proper role of the judicial branch, and offends principles of fundamental fairness. Cf. State v. Patton, 362 N.J. Super. 16, 31-49 (App. Div.), certif. denied, 178 N.J. 35 (2003) (recognizing the use of deception or trickery in law enforcement matters, but drawing the line on the use of fabricated evidence). It is vital to the fair administration of justice that we maintain public confidence in the integrity of the judicial process, which in turn depends on a belief in the impartiality and openness of judicial actions. We further must strive to maintain the separation of powers and scrupulously ensure true judicial independence. See DePascale v. State, 211 N.J. 40, 49-54 (2012).
Since appellants have not raised any argument in their appellate brief with respect to the denial of a stay, we deem the issue waived. See Gormley v. Wood-El, 422 N.J. Super. 426, 437 n.3 (App. Div. 2011).
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In summary, we reverse and remand the October 4, 2011 order for further proceedings in accordance with this opinion. The parties shall be permitted, subject to the exercise of the Law Division's discretion, to supplement the record. We affirm the December 20, 2011 order. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION